CIT Sustains Reluctant Reversal of AFA Rate for Unaffiliated Supplier Non-Cooperation

The Court of International Trade on May 5 sustained a recalculation of an exporter’s antidumping duty rate set in a recent administrative review on solar cells from China. The trade court had in October remanded Commerce’s final results of the 2016-17 review to the agency, after finding Commerce improperly applied partial adverse facts available to the rate it assigned to Risen Energy based on the refusal of Risen’s unaffiliated suppliers to cooperate in the review. CIT said AFA rates must promote cooperation and accuracy, and Commerce didn’t explain how Risen’s AFA rate did so. On remand, Commerce switched to neutral facts available for the relevant portion of Risen’s rate calculation, but did so “under respectful protest.” The agency’s “decision not to use partial AFA to calculate Risen’s dumping margin is consistent with the directive … that accuracy must be the driving force behind a decision to draw an adverse inference,” CIT said.

(Risen Energy Co., Ltd. v. U.S., Slip Op. 21-55, CIT # 19-00153, dated 05/05/21, Judge Kelly. Attorneys: Gregory Menegaz of deKieffer & Horgan for plaintiff Risen Energy Co., Ltd.; Timothy Brightbill of Wiley Rein for consolidated plaintiff and defendant-intervenor SunPower Manufacturing Oregon; Craig Lewis of Hogan Lovells for plaintiff-intervenors Canadian Solar et al.; Neil Ellis of Sidley Austin for plaintiff-intervenors Yingli et al.; Joshua Kurland for defendant U.S. government; Ned Marshak of Grunfeld Desiderio for defendant-intervenor Chint Solar.)